Historical
discourse for CDA Assembly

The
constitution of a country lays down the basic structure
and principles of an accepted political system under
which the people of that particular country are to be
governed.

Professor
A V Dicey, an exponent of constitutional law, states,
''The form or structure of the government of a society
becomes its constitution. The constitution determines the
distribution of the sovereign power within the political
society or state."

Therefore,
a constitution may be defined as ''a system or body of
fundamental principles according to which a nation,
state, or a body politic is constituted and
governed".

In earlier
times, the Greeks invented politics: an idea or notion of
running collective concerns by discussion of possible
choices in a public setting. The words ''politics"
and ''political" are derived from the Greek word for
''city", polis.

The polis,
or to be precise, the city-state, was a community of men,
conscious of shared interests and common goals. The
political city-state in Greece emerged as a
''democracy", taken from two Greek words: demos,
meaning the people, and kratos, meaning government or
rule.

Therefore,
democracy meant government by the people against tyranny
or dictatorship ­ the autocratic rule of one person.

In a
democratic society, the sovereignty or the supreme power,
which in practice is a number of rights (any one of which
can be abstracted), lies with the people of that
respective country. The people have the inalienable right
to govern themselves or to be governed in the way they
like, by the people they choose and in the form they
prefer. In a direct democratic state, the people are
their own masters.

Centuries
ago, the Greeks resisted changes in their political
institutions and they often took the most conservative
approach to day-to-day problems: social discipline. A
very early consequence was the fossilising of the social
structure.

One of the
city-states was Sparta. It was very tradition-bound and
one of its legendary law-givers, Lycurgus, had even
forbidden the writing of the laws of the city-state.
Instead, they were driven into the minds of Spartans by
rigorous training that every citizen underwent during his
youth.

Due to the
growth of the complexities of administration and the size
of modern nation-states, the direct democracy of Athens,
Sparta and the other Greek city-states is no longer
feasible.

In the
modern era, people can however, through representative
democracy, exercise their inalienable right to
self-determination by deciding how and by whom they wish
to be governed.

People in
modern democracies generally exercise their sovereignty
by giving themselves a constitution that outlines the
ground rules under which certain powers are transferred
to different organs of the state. And these state organs
then exercise the powers vested in them towards the
well-being of the people in the country.

It needs
to be stressed that the constitution is not just a
document. Rather, it is a living organism that maintains
the sovereignty of the people and of the functioning
institutions. It must constantly grow and evolve.

The
constitution becomes meaningful only when it represents
the aspirations of the people. Also, it must evolve
through interpretations by the courts of the land and
with the conventions and practices that grow around it in
the actual working process.

Constitutions
of the majority of independent countries in the world are
all written documents, except, rather ironically, the
British constitution. But, the unwritten British
constitution forms the model for many countries in the
world.

It took
more than a thousand years for a constitution to evolve
in Britain. Rather surprisingly, the unwritten British
constitution has lasted longer than most written ones.

The
British constitution comprises the laws, customs and
conventions which have evolved into a much vaunted system
of government.

The
sources of the British constitution are found in
documents such as:

lStatutes
­ which are printed and published;

lLegal
cases ­ as recorded in the Law Reports;

lPolitical
conventions ­ which are described in books and journals;

lOpinions
of constitutional lawyers, political thinkers and
historians that are contained in treatises describing
constitutional rights, duties and practices.

The best
example of a written constitution in the modern world is
that of the United States of America, which was formed in
1787. With its preamble extracted from the Declaration of
Independence of 1776, it is a document of some 12 pages
and is freely available for anyone to read and study.
Most countries in the world have written constitutions.

Constitutions
may be rigid or flexible, depending on the amending
procedures enshrined in the documents themselves.

Normally,
framers of constitutions who possess vision and
farsightedness employ rigid amending procedures, in order
to preserve the very heart and soul of the document and
to withstand the vicissitudes of future political turmoil
that may be in store for the country.

However,
this does not mean that it should be impossible to amend
a rigid constitution. Any amendments that are found to be
necessary may only be made by means of a special amending
process provided by the constitution for that purpose.

While
framing a rigid constitution, the drafters should always
consider the very nature of things, the nature of the
lives of the country's citizens, and the fast changing
world beyond their borders.

Any change
found to be necessary and desirable must follow certain
safeguards, such as the following:

lConstitutional
changes should occur only after due deliberation in the
legislative organs; and,

lThe
people of the country should be given an opportunity to
express their opinions in the form of a referendum.

There
might be several entrenched provisions in a country's
constitution to safeguard the rights and freedoms of the
citizenry. Those entrenched provisions may also serve as
deterrents against armed coups and against those bent on
bringing down the democratically elected government by
force or violence.

Normally,
those articles or entrenched clauses cannot be amended.

The
entrenched articles are the safeguards provided to the
people for delegating their sovereign power to a
representative form of government and serve as the nexus
of the social contract between the government and the
governed, as well as the binding legal link of the people
to their birthright of self-determination.

Finally, I
wish to touch on the concept of constitutionalism as it
has evolved over the years.

Constitutionalism
is both the actual practice of governing a body according
to its constitution and the belief in adhering to it.
Constitutionalism is bound to define and limit the powers
and functions of various organs of the state.

A
government under a written constitution is limited to a
democratic form of government. The spirit of
constitutionalism should provide guarantees and
safeguards to every citizen of a country, with their
welfare and economic well-being given uppermost priority.
Those guarantees should be enforceable if, under any
circumstances, they are violated by any state entities.

Penultimately,
the framers of the constitution should adhere to a
separation of powers amongst the three state organs ­
legislative, executive and judiciary. This is absolutely
necessary in order to impose checks on one another.

Montesquie,
in his book L'Espirit des Lois, wrote, ''When legislative
and executive powers are united in the same person or in
the same body ... there can be no liberty. Again there is
no liberty if the judicial power is not separated from
the legislature and executive."

The
framers of the constitution may consider and address
their minds to the constitutional suggestions given in
this article, namely to provide a people's charter, with
the view of taking the country and the people into the
next millennium.

A word of
caution, however, is very apt in concluding this opinion.
The adoption of a constitution is not the end of the
journey.

It is only
the beginning of the people's journey, taking into
account the hazardous distance ahead of them.

If the
people who are elected to represent the country are
capable ones, with integrity and character, then they
would be able to make the best even out of a defective
constitution. On the other hand, if those same leaders
are lacking in quality, wisdom, character and integrity,
then the constitution, no matter how perfect, cannot help
Thailand's onward march towards the next millennium.

K T
Rajasingham is a independent business consultant for
regional governments. He contributed this comment to The
Nation.